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Voting Rights Roundup: Oregon Dems bow to pressure from GOP obstruction and cede redistricting power

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Leading Off​


Oregon: Last week, Oregon Democrats reached a deal with Republican lawmakers where Democrats agreed to give up their majorities on the legislature's redistricting committees, giving the GOP veto power over any new maps, in exchange for Republicans agreeing to back off some of their unprecedented obstruction of routine legislative business.

Oregon is one of just four states that requires a two-thirds supermajority for a quorum needed to conduct legislative business, and the GOP minority since 2019 has taken to repeatedly staging walkouts in order to block major Democratic bills such as those on gun safety, climate change, and other topics, with one GOP state senator infamously even threatening to shoot state troopers if they were sent to bring him back to the capitol by force two years ago. Republicans have furthermore taken to requiring bills be read in full and other tactics to manufacture delays even when bills ultimately do pass.

However, as we'll detail below, this latest development is actually a setback for fair redistricting and will likely only embolden Republicans to keep engaging in the same sort of "constitutional hardball"—a term political scientists have given to actions that don't actually violate the letter of the law but do violate long-standing norms and the spirit of the law—to get their way even when they can't win elections, since there's little to prevent Republicans from going back on their word in future legislative sessions.

By giving the GOP equal representation on the redistricting committees, Republicans will likely be able to block Democrats from passing new gerrymanders in the legislature following the 2020 census. However, this won't actually prevent Democrats from enacting new gerrymanders of the legislative districts, since the legislature's failure to pass new districts ahead of the Sept. 27 deadline would simply result in Democratic Secretary of State Shemia Fagan gaining unilateral control over the process and still being able to draw new gerrymanders.

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Instead, this agreement gives the GOP a veto over congressional gerrymandering, which would lead to a court drawing relatively nonpartisan districts if lawmakers can't pass a map. But unlike legislative redistricting, where Democrats can draw the maps for an entire chamber to entrench their own advantage, Oregon's congressional redistricting does not happen in a vacuum. Preventing Democrats from gerrymandering Oregon ultimately makes the national map even more unfairly stacked in the GOP's favor because they're set to draw two to three times as many congressional districts nationally as Democrats and have steadfastly opposed banning congressional gerrymandering nationwide as Democrats in Congress are currently trying to do.

Republicans will argue that this move promotes fairness by stopping Democrats from gerrymandering, but just like their unprecedented procedural abuse to stop a variety of bills from passing despite their majority support, Republicans' real goal is to prevent the Democratic-supporting majority of the electorate at the national level from being able to govern as they have attempted at the state level, knowing full well that blocking a Democratic congressional gerrymander only further empowers Republican gerrymanders in the rest of the country. Furthermore, Republicans could later go back on their word because they still retain their power to deny a quorum, whereas Democrats can't go back on their word on redistricting once it has already happened.

Republicans may point out how two decades ago, it was Democrats who used the two-thirds quorum rule to stage a boycott to prevent the GOP from passing a gerrymander. However, that 2001 instance wasn't used to block all GOP-backed legislation and was limited to stopping a Republican legislature from entrenching a partisan advantage in legislative redistricting, which is not what Republicans are setting themselves up to accomplish here and would be more justifiable if they were. Instead, Republicans are using extreme quorum tactics to exacerbate the GOP's unfair congressional advantage nationally, not making the playing field fairer at the state level as Democrats did after 2000.

The almost unparalleled quorum supermajority requirement is at the root of the problem since it gives the minority an incentive to run out the clock after the state constitution was amended in 2010 to mandate an end date to legislative sessions. Democratic legislators could put an amendment on the ballot to amend the state constitution to lower the quorum threshold, but doing so itself would require a quorum, which GOP obstruction prevented them from doing last year.

Alternatively, Democrats could try to gather signatures for an initiative to put quorum reform on the ballot, circumventing legislative gridlock. But so far, left-leaning groups have only filed paperwork for two 2022 ballot initiatives that would fine lawmakers for unexcused absences and bar them from seeking reelection if they have 10 or more of them rather than taking the more surefire step of reducing the quorum threshold directly; it's unclear if the latter proposal lacks enough support to pass compared to the other proposals.

Some Democrats may simply be hoping that they can still gerrymander the legislative districts and gain two-thirds supermajorities in 2022, rendering GOP obstruction impotent and clearing the way for lawmakers to pass quorum reforms in 2023. However, there's no guarantee of that happening in a midterm that is likely to disfavor the president's party downballot, especially with only half of the state Senate seats up for election every two years.

Meanwhile, good government advocates have refiled a ballot initiative of their own that would create an independent redistricting commission and take away either party's power to gerrymander at both the congressional and legislative levels. Redistricting reformers tried to put a similar proposal on the ballot last year, and we previously detailed how that proposed reform would have worked. However, the courts refused to make it easier for them to obtain the necessary signatures by relaxing the rules during the pandemic, ultimately blocking it from the ballot last fall.

Reformers say they won't yet start gathering signatures for this latest initiative and want to use it to try to pressure lawmakers to come to an agreement to put a reform measure on the ballot themselves, but in case that fails, reformers would need to obtain just under 150,000 signatures to qualify for the 2022 ballot. If the proposal does qualify for the ballot and wins majority approval from voters, it would require new districts to be drawn for 2024, meaning any Democratic gerrymanders of the legislature may be short-lived and complicate any hopes of gaining the two-thirds majorities needed to pass quorum reforms over GOP opposition.

Redistricting​


Michigan: Michigan's new independent redistricting commission and Democratic Secretary of State Jocelyn Benson have filed a lawsuit asking the state Supreme Court to extend the deadlines for redistricting due to the census' months-long delay in releasing the data needed to draw new districts.

The state constitution requires commissioners to make proposed maps available for public comment for at least 45 days starting no later than Sept. 17, but the census won't release the necessary data in a user-friendly format until Sept. 30 (though the census will release it in an older format in mid-August). The lawsuit asks the court to move the deadline for proposing districts to Dec. 11 and move the deadline for passing new maps from Nov. 1 to Jan. 25, 2022.

Montana: On Thursday, Republican state senators gave preliminary approval to a bill that would effectively gerrymander the state Supreme Court by switching it from using statewide elections to using districts drawn by GOP legislators. With state House Republicans having already passed the bill, it appears headed for passage once Senate Republicans hold a final vote in the coming days. If passed out of the legislature and signed by GOP Gov. Greg Gianforte, the proposed change would go on the ballot in 2020, giving voters a chance to veto it.

Daily Kos Elections has calculated several recent statewide election results by the GOP's proposed districts, and had this map been in effect in 2020, four of the seven districts would have seen Republican statewide candidates win by seven to eight points more than their statewide victory margins in this already GOP-leaning state. Republicans would therefore be favored to take control of the court.

New York: Democratic Gov. Andrew Cuomo has signed the annual budget bill into law, enacting a provision that allocates $4 million in funding to the bipartisan redistricting commission. That appropriation likely makes moot a lawsuit over funding filed by a commission member last month.

Oklahoma: On Wednesday, Republican legislators unveiled their proposals to gerrymander Oklahoma's legislative districts for the second decade in a row, making Oklahoma the first state where lawmakers have proposed new districts following the 2020 census. Republicans only released images of the maps on the legislature's website (here and here) instead of providing more granular data and files that would make it easier to analyze the maps, but redistricting analyst Michael Migurski with the nonpartisan group Plan Score found that the proposals maintain the GOP's unfair advantage according to one prominent metric.

GOP lawmakers drew these maps using population estimates from the census' American Community Survey since the census won't release the hard count data from the 2020 decennial census needed to draw new districts until August, practically guaranteeing that there will be a lawsuit alleging that the proposed maps are illegal because of it. However, Republicans face a May 28 deadline under the state constitution to pass new legislative maps before forfeiting control over the process to a bipartisan commission with an even number of members from both parties, which could stop Republicans from gerrymandering.

Redistricting expert Michael McDonald hypothesizes that the GOP is using population estimates to draw new maps in time to meet the state constitution's deadline. Doing so is of questionable legality; even if the maps get thrown out for failing to ensure equal population, a court could still give Republicans a subsequent second chance to draw new maps, at which point the census may have already released the hard count data. By contrast, failing to pass any new districts next month could mean Republicans are required to appoint the bipartisan backup commission.

Voting Access Expansions​


Congress: On Thursday, House Democrats voted 216-208 along party lines to pass a bill granting statehood to the vast majority of Washington, D.C., marking the second time in U.S. history after a prior House vote in 2020 that either chamber of Congress has passed a statehood bill for Washington.

The bill now goes to the Senate, where our cartogram shows that 45 Senate Democrats are sponsoring the measure, one other Democrat had previously sponsored a similar bill in 2020 but has not yet signed on in 2021, and the remaining four Democrats have yet to take a position. With every Republican opposed, passing Washington, D.C. statehood into law will require Democrats to curtail the filibuster in the Senate in addition to getting the remaining holdouts on board.

In 1978, both chambers of Congress passed a constitutional amendment to give Washington, D.C. full voting rights, but only 16 of the necessary 38 states ratified it before the allotted time to do so expired. By contrast, the latest proposal would sidestep the need for an amendment and would operate like ordinary legislation by leaving intact a rump district that would be shrunken down to key federal buildings contained within two square miles around the Capitol and White House while the rest of the city would be admitted as a new state.

Notably, no other contemporary democratic country disenfranchises its own capital, and Washington, D.C.'s population of almost 700,000 is already larger than both Vermont’s and Wyoming’s. Most critically, the U.S. Senate gives rural white voters vastly outsized political power relative to voters of color, so admitting Washington, D.C. with its predominantly Black population would help mitigate the chamber's racial and anti-urban biases—and ensure greater justice for the District.

Delaware: State House Democrats have passed a bill out of committee that would adopt automatic voter registration via Delaware's driver licensing agency, following on the heels of the bill's approval by Democrats in the state Senate. State House Democrats also passed another bill out of committee that would move the September primary for offices below the presidential level to take place on the same day as the presidential primary in April, a change that would save money on election administration costs and would likely lead to higher turnout in downballot primaries.

Hawaii: A conference committee in Hawaii's Democratic-run legislature has approved a bill that would adopt automatic voter registration through Hawaii's driver licensing agency, setting up a final vote in both the state Senate and state House before the bill can go to Democratic Gov. David Ige. Two years ago, Democrats in both legislative chambers had passed differing versions of a similar bill only to fail to agree with each other in conference committee, so this latest development is an encouraging sign for the prospect of automatic registration finally becoming law, but lawmakers have limited time left before the legislative session ends on April 29.

Maryland: Democratic legislators sent a bill to Republican Gov. Larry Hogan earlier this month before adjourning that would create a semi-permanent absentee voting list whereby voters who opt in would receive a mail ballot in all future elections without having to request one each election. However, unlike other states with similar permanent absentee ballot lists, the Maryland bill would remove voters who don't vote in two consecutive election cycles from the list, requiring them to reapply if they want to get back onto the list.

New York: State Assembly Democrats have passed a bill over Republican opposition that would automatically restore voting rights to people with felony convictions upon their release from prison, thus codifying an executive order that Democratic Gov. Andrew Cuomo issued in 2018 to restore voting rights to people on parole. State Senate Democrats previously passed the bill, meaning it now goes to Cuomo for his expected signature.

Voter Suppression​


Arizona: Arizona state House Republicans have passed bill along party lines that would end the permanency of Arizona's popular "permanent early voting list"—which automatically mails an absentee ballot in all future elections to voters who opt in—by removing any voter who hasn't voted in a four-year period and doesn't respond to a single mailed notification within 90 days, which could be up to roughly 200,000 voters. State Senate Republicans have already approved the bill, but another Senate vote is needed to concur with the changes House Republicans made before the bill can go to GOP Gov. Doug Ducey for his expected signature.

However, Republican state Sen. Kelly Townsend unexpectedly voted against the bill on Thursday, saying that she wouldn't support any one of her party's election bills while a bogus "audit" of Maricopa County's 2020 election is still ongoing, since Republicans are using the sham audit as a pretext to justify new voting restrictions and undermine the legitimacy of Joe Biden's victory in Arizona. With Republicans only holding a 16-14 majority and all Democrats opposed, Townsend's opposition led to the Senate rejecting the bill, but the bill's sponsor also voted against it in order to be able to bring it up again at a later date, meaning the measure is far from dead.

Arkansas: Republican Gov. Asa Hutchinson has signed several new voting restrictions passed by the GOP legislature into law. The new laws will:


Republican legislators also voted to send a bill to Hutchinson that requires absentee ballots be returned to officials by the Friday before Election Day in order to count instead of Election Day itself, a requirement practically unparalleled in any other state. Finally, state Senate Republicans have passed a bill eliminating the final Monday of early voting, which is one of the most popular days, sending the bill to the state House.

Florida: Republicans have passed new voting restriction legislation out of committee in both the state Senate and the state House, setting up floor votes in both chambers. The bills (here and here) would restrict absentee ballot drop boxes to only being available at early voting sites during early voting hours and require that they be staffed by election office employees, which could further limit their availability.

The proposals would also restrict who may turn in someone else's mail ballot on their behalf. The House version but not the Senate version would also require people dropping off absentee ballots to show ID and attest that they have the voter's permission if doing so on behalf of someone else such as a family member.

The bills furthermore require that voters' signatures on their absentee ballots could only be compared with signatures from the previous eight years for verification purposes rather than their more extensive signature history instead. If no signature is available from the past eight years, then officials could use the most recent "wet" signature on file made via pen on paper.

However, voting advocates contend that hundreds of thousands of voters only have an electronic signature on file from when they originally registered to vote via the state's driver licensing agency, which also may have been a much longer time ago. Furthermore, voter signatures often change over time, as illustrated by the Tampa Bay Times' reporting that looked at the changing signatures of GOP Gov. Ron DeSantis himself.

The bills also eliminate a policy that allows voters to make a single request to receive an absentee ballot for all elections that take place in the next two federal election cycles. Instead, voters will now have to make a new request each election cycle, though requests from 2020 for the coming 2022 cycle wouldn't be retroactively cancelled as they would have under the original version of the legislation.

Lastly, the bills include provisions that would effectively make it illegal for volunteers to give food or water to voters waiting in line to vote, which combined with the provisions making it harder to vote by mail could increase the odds that some voters in hours-long lines simply give up on voting entirely.

Indiana: Republicans have failed to pass a bill ahead of a key deadline that would have added a voter ID requirement for online absentee ballot applications. Both chambers of the GOP-run legislature previously passed different versions of the bill but failed to advance a single proposal before the recent legislative session ended on Thursday. However, the bill could reappear in a future legislative session.

Montana: Republican Gov. Greg Gianforte has signed two voting restriction bills into law that eliminate the ability of voters to register on Election Day itself and enact a stricter voter ID requirement, prompting state Democrats to immediately file a lawsuit in state court.

Election Day registration was adopted with bipartisan support in 2005 and was typically responsible for 1% to 2% votes cast in general elections, a group that was disproportionately young and Native American, but this new law sets the registration deadline at noon on the Monday before Election Day. The voter ID law, meanwhile, would ban the use of student IDs unless college students have a supplemental form of ID such as a bank statement or utility bill.

The Democratic-backed lawsuit argues these new laws discriminate against young and Native American voters in violation of the state constitution. If the case eventually reaches Montana's Supreme Court, the high court doesn't have a solidly progressive or conservative majority, though the swing justices have sided with progressives in some high-profile cases in recent years.

However, Montana Republicans are also trying to gain tighter control over the court by advancing a bill to gerrymander the court itself, which state Senate Republicans gave preliminary approval to on Thursday (see our other Montana item above), and by passing a law that eliminated the judicial nominating commission to give Gianforte the power to directly select state judges instead of being limited to choosing from a list of proposed nominees screened by commissioners to make the process more merit-based and less partisan. That latter law has already sparked a lawsuit asking the state Supreme Court to block it as unconstitutional.

Ohio: Ohio Republicans unveiled a memo detailing proposed voting legislation that would enact several new voting restrictions along with a few policies to expand voting access. Although the bill text isn't yet available, the GOP's proposal according to the memo would restrict access to voting by:

  • Reducing the availability of absentee ballot drop boxes from 30 days to just 10 days before Election Day except in declared emergencies, when they would remain available for the full 30 days that early voting is available
  • Codifying GOP Secretary of State Frank LaRose's 2020 restriction of one drop box location per county (situated at the county elections board) regardless of population size, meaning urban Democratic strongholds such as Franklin County, which is home to the state capital of Columbus and 1.3 million people, would have the same number of locations as rural GOP-heavy counties such as Vinton County, which has roughly 13,000 residents
  • Only allowing absentee voters to use their Social Security number for voter ID if they don't have a driver's license or state ID card
  • Disqualify absentee ballots that are not returned in an inner privacy envelope
  • Eliminating the final Monday of early voting and moving those hours to different days
  • Require legislative approval for the secretary of state to implement prepaid postage for absentee ballots or applications

The bill would add a few voting expansions, most notably by:

  • Automatically updating existing voter registrations when voters visit the state Bureau of Motor Vehicles, though this falls short of true automatic registration, which would extend to unregistered eligible voters
  • Creating an online option for requesting absentee ballots, though it still requires two forms of voter ID numbers
  • Allowing electronic copies of utility bills or bank statements for voter ID instead of just a hard paper copy

Republicans hold full control over state government and could pass these proposals despite likely Democratic opposition.

Texas: State House Republicans have passed a bill that effectively bans drive-thru voting by requiring every polling place to be located inside a building, excluding parking facilities and temporary or movable structures.

This bill comes in response to officials in the Democratic stronghold of Harris County—which is the state's most populous and home to Houston—implementing drive-thru voting due to the pandemic last year, which saw more than 127,000 citizens vote via drive-thru last November. Those drive-thru voters in Harris County were also much more racially diverse than the overall electorate, with a state Democratic Party analysis finding that 54% of drive-thru voters were people of color compared to just 30% of overall early voters. Bill opponents also noted that this bill could wreak havoc with polling place access during future natural disasters.

Ballot Measures​


Idaho: Republican Gov. Brad LIttle has signed a law that aims to kill off left-leaning ballot initiatives after progressives used them to expand Medicaid and block Republicans from gutting collective bargaining and other workplace protections for public school teachers this past decade. The new law requires initiative supporters to obtain signatures equal to 6% of registered voters in all 35 of the state's legislative districts, an increase from the current requirement of needing signatures in 18 districts.

While Idaho's bipartisan redistricting commission prevents outright GOP gerrymandering, the state still has multiple lopsidedly Republican districts such as two rural ones that gave Hillary Clinton less than 10% of the vote in 2016, meaning it may be practically impossible for progressives to qualify initiatives for the ballot even when they have significant support statewide. By contrast, while conservatives would also have to obtain signatures in all 35 districts to put measures on the ballot, no district gave Donald Trump less than 27% of the vote in 2016, and those heavily Democratic constituencies tend to be dense urban areas where it's nevertheless much easier for them to obtain signatures than it would be for progressives in conservative rural areas.

This law's passage marks the second time that Republicans have increased the signature distribution requirements, following a 2012 veto referendum that blocked Republicans' attempted education changes, which Republicans responded to by adding geographic distribution requirements for signatures in the first place. Idaho is one many states where Republicans over the past decade have responded to initiatives seeking to enact progressive policies or pro-democracy reforms by trying to make those same initiatives impossible to pass.

Court Cases​


Pennsylvania: With no dissents, the U.S. Supreme Court has rejected an appeal by Republicans that had challenged Pennsylvania's 2020 election rules, ending the last of the many unsuccessful legal challenges Republicans filed to try to overturn Joe Biden's victory by vacating a 3rd Circuit Court of Appeals ruling and telling the lower court to dismiss the case as moot. Republicans had been challenging a decision by the state Supreme Court's Democratic majority to count mail ballots that were postmarked by Election Day but not received until up to three days afterward, and the federal high court's ruling means roughly 10,000 of those ballots may now be counted for president.

Republicans had tried to argue an extreme and unprecedented view of the U.S. Constitution's Elections Clause that would have swept aside the power of state courts, voters via ballot initiatives, and potentially even governors through their veto power to check the power of state legislatures to set federal election laws, giving GOP-gerrymandered legislatures such as Pennsylvania's free rein to entrench their own partisan advantages at the state level. However, while far-right Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch all signaled that they would accept this radical legal theory, the overall conservative majority did not agree to take up the appeal, but the issue could ultimately find its way back before the court in future litigation.

Judicial Elections​


Ohio: Republican state senators have passed a bill along party lines that would add party affiliations to the ballot for state Supreme Court contests in an effort to prevent Democratic candidates from gaining a majority on the bench in next year's elections.

Under current law, candidates run in party primaries but compete without party labels on the general election ballot, and that system likely helped Democrats flip three GOP-held seats in 2018 and in 2020 even when Republicans were winning partisan races further up the ballot. Democrats only need to flip one of the three Republican-held seats up for election next year to gain a 4-3 majority that they could then use to strike down Republicans' gerrymanders and voting restriction laws, which is undoubtedly why Republicans are taking action to secure their hold on the court.

While Daily Kos Elections has long argued that the uniquely American practice of electing judges at nearly all levels of state and local government is bad for judicial impartiality and the rule of law, this change to add party affiliations makes a degree of sense when candidates are already nominated in party primaries. However, it is telling that Republicans are only trying to enact this change following their 2018 and 2020 losses and not when they last regained total control over state government in 2010, which was followed by Republicans winning two of the three nonpartisan court races in 2012 even as Barack Obama carried the state for president.
 
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